CJEU: Strict liability for damages following unjustified provisional measures allowed
11-01-2024 Print this page
Article 9(7) of the Enforcement Directive does not preclude strict liability-based national legislation which provides for a mechanism for compensation for any injury caused by a provisional measure in the context of which the court is entitled to adjust the amount of damages by taking into account the circumstances of the case, including whether the defendant played a part in the occurrence of the injury.
IP ENFORCEMENT
Preliminary questions:
(1) Is a compensation regime based on strict liability, such as that … in force in Finland, to be regarded as compatible with Article 9(7) of [Directive 2004/48]?(2) If the first question is answered in the negative, what then is the nature of the liability for compensation on which the liability under Article 9(7) of [Directive 2004/48] is based? Is that liability to be regarded as a form of liability based on fault, an abuse of rights, or some other ground?
(3) In relation to the second question, what circumstances must be taken into account in assessing the existence of liability?
(4) In particular, as regards the third question, must the assessment be made solely on the basis of the circumstances known at the time when the provisional measure was obtained, or is it permissible to take into account, for example, the fact that the intellectual property right on whose alleged infringement the provisional measure was based was subsequently, after that measure was obtained, found to be invalid ab initio and, if so, what significance is to be attached to that circumstance?
The court rules:
Article 9(7) of [Enforcement Directive] must be interpreted as not precluding national legislation which provides for a mechanism for compensation for any injury caused by a provisional measure, within the meaning of that provision, based on a system of strict liability of the applicant for those measures, in the context of which the court is entitled to adjust the amount of damages by taking into account the circumstances of the case, including whether the defendant played a part in the occurrence of the injury.
IPPT20240111, CJEU, Mylan v Gilead
Article 9(7) of the Enforcement Directive does not preclude strict liability-based national legislation which provides for a mechanism for compensation for any injury caused by a provisional measure in the context of which the court is entitled to adjust the amount of damages by taking into account the circumstances of the case, including whether the defendant played a part in the occurrence of the injury.
ECLI:EU:C:2024:8 and case C-473/22
